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Date: 07-19-2020
Case Style:
STATE OF OHIO v. KAINOA JACINTO
Case Number: 108944
Judge: EILEEN A. GALLAGHER
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sean M. Kilbane, Assistant Prosecuting
Attorney
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer in Ohio.
Description:
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On October 9, 2018, a Cuyahoga County Grand Jury indicted Jacinto
on one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree
felony. The charge arose out of September 16, 2018 incident in which Jacinto
punched and “knocked out” Bryant Lee (“Lee”), who struck his head on the concrete
sidewalk as he fell to the ground. As a result of the incident, Lee sustained a serious
brain injury. Jacinto pled not guilty and, on July 24, 2019, a jury trial commenced.
A summary of the relevant evidence presented at trial follows.
On September 15, 2018, Jacinto and Lee were in Cleveland, attending
a conference for a company for which they both worked, ACN, Inc. (“ACN”), a “onestop shop” for services such as gas and electric utility services, high speed internet,
home security services and identity theft protection. Jacinto traveled to Cleveland
from Michigan for the conference, and Lee and his wife, Jaime Lee (“Jaime”),
traveled to Cleveland from Wisconsin for the conference. Jacinto and the Lees were
staying at the Hilton Garden Inn on Carnegie Avenue in Cleveland.
The Lees and Jacinto met for the first time that evening at the hotel
bar. Around midnight, Jacinto, the Lees and several other ACN conference
attendees decided to leave the hotel bar and go to other downtown bars. Along the
way, they bumped into another ACN conference attendee, Orlando Contreras, who
was also staying at the Hilton Garden Inn. Contreras had never met Jacinto or the
Lees prior to the conference.
Jaime described Jacinto as “obnoxious,” “loud” and “cocky.” She
stated that he talked about being a mixed martial arts (“MMA”) fighter, bragged
about his houses, cars and how much money he had made and was “poking at
everybody and kind of flaunting * * * the entire night.” Jaime stated that she talked
and laughed with the other ACN conference attendees and “played the role” because
she knew her husband wanted to “climb the ladder of the team in this organization.”
She testified that Lee and Jacinto talked a lot and seemed to be getting along very
well.
Contreras testified that Jacinto carried himself as being “someone of
importance” and that Jacinto told him that he was “a fighter” and that he “trained
semi-pro MMA.” Because Contreras also spent a lot of the time in the gym and had
fought some men with professional training, the two men discussed their past
experiences and training history. Jacinto told Contreras that he had been “known
to beat several people up in a single incident if needed.”
Contreras testified that “everyone got along well” that night with “lots
of laughs, jokes, situations” and that everyone was drinking heavily. At around 2:00
a.m., the group headed back to the hotel.
Jaime testified that once they arrived back at the hotel, Jacinto made
a “slick,” “annoying” comment to her that made her “very angry.” Jaime told Jacinto
that she was “not one to mess with” and her husband suggested that she go to bed.
Jamie took her husband’s advice and went back to their hotel room.
Contreras testified that as they were walking back to the hotel, Jacinto
told Contreras he could have “hooked him up” with a girl at the bar but that his
“dance moves” “f***** it up.” Contreras said he did not react to Jacinto’s comment,
but that Lee intervened and told Jacinto he had been “rude” and “disrespectful” and
owed Contreras an apology. Contreras stated that Lee was “trying to prove a point”
to Jacinto, i.e., that “you can’t be rude to people,” but that Jacinto “wouldn’t accept
it” and said he had done nothing wrong. The two men went back and forth about
the issue for several minutes.
Contreras testified that, during this time, Jacinto told him he was
“trying not to get mad” and was “antsy,” “pacing back and forth,” “[l]ike he had to
like basically walk it off.” After a bit, the situation deescalated. Jacinto and Lee
shook hands and appeared to be “cool,” and the three men began walking back
toward the hotel.
Before the three men went back into the hotel, however, the situation
re-escalated. According to Contreras, “somebody said something and then it started
right back up again * * * just about the same thing.” The two men got “real close to
each other,” “chest to chest,” and Lee poked Jacinto in the chest “like three times,”
“saying something.”
Contreras testified that, by this time, all three men were “pretty
intoxicated.” In addition to whatever else the men had had to drink earlier that
evening, Contreras stated that the men had gone to three or four bars, were “taking
turns” buying rounds and all had had “one shot, one drink at each location, [with]
probably an extra drink at the last location.”
After the “poking,” the situation calmed down again for a bit.
Contreras testified that after Lee poked Jacinto, Jacinto turned around and walked
away, trying to “walk it off” as Lee kept talking, lecturing Jacinto about his
disrespectful conduct.
At some point during their interaction, Jaime came out of the hotel
and told Lee it was “time to go to bed.” Jaime testified that Lee had his hands in his
pockets, that the three men laughed at her remark and that it “seemed like
everything was fine.” “[S]ens[ing] nothing being wrong,” Jaime went back to her
hotel room, took a shower and went to bed. Lee remained outside with Jacinto and
Contreras. The next time Jaime saw Lee was in the intensive care unit at a nearby
hospital.
In the last four minutes of their interaction, the situation re-escalated
once again. Jacinto was about to enter the hotel, but suddenly turned back.
Contreras stated that, at this point, Lee said something “petty” to Jacinto and
Jacinto “just couldn't take it anymore,” his eyes were locked on Lee, he was “clearly
mad” and Contreras could tell he was “ready to fight,” i.e., that he had “hit that
switch” and was in “attack mode.”
Contreras testified that as Jacinto started moving towards Lee, he got
in between the two men and, for approximately three or four minutes, held Jacinto
back from Lee, stepping in front of Jacinto, blocking him and “pressing him away”
from Lee, who was “standing still” but “kept talking.” At the time, Lee and Jacinto
were “like three to four feet [apart,] just outside striking distance.”
Contreras testified that, eventually, Lee said, “Let him go. I will fight
him,” and assumed a “fighting stance.” Deciding there was “nothing more [he] could
do about it” and that the two men were “clearly going to fight,” Contreras dropped
his hands, turned around and walked back towards the hotel entrance. At this time,
Lee and Jacinto were approximately eight feet apart. Contreras stated that he was
“trying not to see anything” and was “just trying to go to the door,” but that he heard
“a very brief fight,” i.e., “scruffles.” Four or five seconds later, Jacinto was “walking
up right by [his] side” and they walked into the hotel together. Contreras testified
that he felt “terrified” as he rode the elevator with Jacinto because he “did not want
to be involved” and “did not want to get assaulted” himself.
Contreras stated that although Lee may have “verbally initiated” the
fight by “arguing” with Jacinto, “trying to make things right,” Lee never pushed or
punched Jacinto. According to Contreras, although it was an “emotional
conversation” between Lee and Jacinto in which Lee “yelled” and “raised his voice,”
Lee never threated Jacinto and never said anything “derogatory” or used “fighting
words”; he “just took it too far” trying to make a point. Contreras testified that the
“fight” occurred approximately ten minutes after Lee “poked” Jacinto in the chest.
Surveillance footage from the hotel’s security cameras captured
portions of the interaction between the three men until the last four or five minutes
leading up to the “fight.” The surveillance video has no audio but shows Jacinto with
his hand on the door to the hotel lobby, opening the door at approximately 3:15:40.1
He closes the door and turns back to shake hands with Contreras. Jacinto and Lee
shake hands and Lee pulls Jacinto towards him in a hug at approximately 3:15:54.
Jacinto then moves towards Lee, talking and gesturing with his right hand in close
proximity to Lee. It cannot be seen from the video whether Jacinto makes contact
with Lee when gesturing. As the two men continue talking, Lee moves toward
Jacinto and gestures and points his index finger at Jacinto, ultimately touching or
poking Jacinto in the chest with his fingers at 3:16:14. The two men continue
talking. Jacinto backs away at first, then, once again, moves closer towards Lee,
gesturing with his right hand as he talks. Then Lee moves towards Jacinto, pointing
his finger and gesturing at Lee. Both men continue gesturing with their hands and
talking in close proximity to one another.
1 3:15:40 and the numbers that follow refer to the elapsed time on the surveillance
video, which starts at 3:00:00. It is unclear from the record whether that elapsed time
directly correlated with time of day, i.e., whether the events depicted at 3:15:40 occurred
precisely at 3:15:40 a.m.
At approximately 3:16:53, Contreras steps in, places his hand on
Jacinto’s shoulder and proceeds to get in between the two men as they continue to
talk or spar at one another, slowly walking around and then away from the hotel
door. The men go off camera at approximately 3:18:10.
At approximately 3:22:40, Lee’s wife opens the hotel door and stands
outside, holding the open door, apparently talking to the men, for approximately
eight seconds, before going back into the hotel. At approximately 3:25:04, Jacinto
opens the hotel door with Contreras following him, then closes the door and turns
back toward Lee, who can be seen gesturing behind him. Jacinto walks toward Lee,
saying something and gesturing at Lee while Contreras has his hand on the hotel
door.
At approximately 3:25:40, both Lee and Jacinto are off camera again.
Contreras takes his hand off the door and walks off camera to the left at
approximately 3:26:02. The three men remain off camera until approximately
3:30:42 when Jacinto opens the hotel door for Contreras and he and Jacinto walk
back into the hotel. Lee is never seen on the hotel surveillance footage again.
Toni Newborn, a 911 operator and paramedic for the city of Cleveland,
testified that at approximately 3:41 a.m. on September 16, 2018, she received a 911
call from a male caller reporting that someone had punched a person at the Hilton
Garden Inn and that the victim had fallen to the ground. The 911 call was played for
the jury in its entirety. The male caller stated: “A guy walked up to him and hit him
and knocked him out and his head hit the concrete, so he is knocked out, so I don’t
know if he is breathing or what.” The caller stated that he had been sitting in his car
and heard the sound of the person’s head hitting the ground from across the street
“so he hit the ground hard.” He indicated that the victim was “barely breathing” and
“gasping for air” and had urinated all over himself. The caller further stated that he
and a woman had tried to pick up the victim but that they could not do so because
he was “knocked out.” The caller indicated that after “the guy hit him and [the
victim] hit the ground, the two other guys walked on back into the hotel.” The 911
operator asked the caller whether the man had been assaulted, and he replied,
“evidently, yeah.” The caller did not identify or describe the perpetrator(s) but
stated, in response to further inquiry by the 911 operator, that he could “point [the
police] in their direction.”
Leah Sessoms, a night auditor at the Hilton Garden Inn, testified that
she observed a white male (later identified as Jacinto) and an African-American
male (later identified as Lee) on the sidewalk in front of the hotel “in what seemed
to be a verbal altercation.” She indicated that the two men would be arguing and
then they would appear friendly, e.g., embracing each other in a friendly manner or
smoking a cigarette together, and that it kept going “back and forth,” escalating and
deescalating and re-escalating again. She testified that she did not believe she
needed to call police because there was a third male (later identified as Contreras)
who “seemed to keep the guys apart when they were getting into each other’s faces.”
Sessoms testified that she went outside for an unrelated reason and when she was
returning to the hotel, she saw Lee laying on the ground. She stated that he had
urinated himself and was not moving at all. She called the police. When the police
arrived, she told them what she had observed.
Cleveland Police Officer Domenic Ragazzo was among the first to
arrive at the scene. He testified that he received a call at approximately 3:45 a.m.
that a “male [was] down” at the Hilton Garden Inn. Officer Ragazzo testified that
when he and his partner arrived at the scene a few minutes later, he saw a black
male, later identified as Lee, lying down on the ground outside the hotel, face up,
unconscious with “what looked like vomit or spit coming out of his mouth.”
According to Officer Ragazzo, at first, he did not believe Lee had been assaulted
because he saw no blood, bruising or injuries or “sign of any assault” to Lee’s face
and Lee’s body was not in a position one would expect after a fist fight. Officer
Ragazzo testified that upon arrival, Lee was “laying very stiff” with his arms down
on the side and his feet “straight up.” EMS arrived around the same time as Officer
Ragazzo, and immediately began tending to Lee.
Gregory Hyde, a paramedic with the city of Cleveland, was one of the
EMS personnel who was dispatched to the scene in response to the 911 call. He had
been a paramedic for 29 1/2 years and had been on several hundred calls involving
head trauma. Hyde testified that when he arrived on scene at 3:51 a.m., he learned
from a bystander that Lee had been punched in the mouth, that he had then fallen,
striking his head on the sidewalk, and that Lee had not moved after falling to the
ground. Hyde testified that when he first observed Lee, Lee was unconscious and
was in a decorticate posture, i.e., his arms were in towards the body, his hands were
out, his legs were stiff and rigid, which was “indicative of a significant brain injury.”
Hyde also noted that Lee had vomit in his airways, a strong radial pulse and high
blood pressure and that his respiratory rate was shallow and irregular — all of which
was consistent with a serious head injury. Hyde also observed a small, “fresh”
abrasion to Lee’s mouth or upper lip. Hyde stated that he did not see any bruising
but was not surprised, notwithstanding the information he had received that Lee
had been punched, because bruising takes time from “several minutes up to several
hours” to start showing. Hyde indicated that Lee’s condition was “quickly
deteriorating” and “very concerning,” with all signs pointing to a significant brain
injury.
Hyde stated that Lee’s injury was not consistent with someone
stumbling over drunk and hitting his head against the ground because although
people can sustain significant head injuries from stumbling while drunk, they do not
typically fall backwards as Lee did here. He testified that, based on his training and
experience, “it would take a significant amount of force,” i.e., “[i]t would not be a
light slap or just a push away * * * it would have to be a very hard purposefully
thrown punch meant to cause damage,” to “knock somebody out and over” and
cause the type of injuries Lee sustained.
Hyde further testified that, based on his experience and training, he
would not expect to see such a significant injury from an individual being punched,
knocked to the ground and then losing consciousness (i.e., losing consciousness only
after hitting the ground) because if a person gets knocked to the ground, the body
has basic reflexes that will engage to protect itself from serious injury. Hyde stated
that Lee’s injuries were more consistent with someone being punched and knocked
unconscious before hitting the ground because an individual’s reflexes do not work
when a person is unconscious. He stated that he believed Lee’s “head trauma” was
“[p]robably a combination of both” the punch and hitting the ground.
When defense counsel asked Hyde, on cross-examination, what he
thought had happened to Lee, Hyde stated that he believed Lee “took a blow that
knocked him unconscious,” that he then “fell straight backwards with nothing
protecting him” and “smacked his head on the concrete,” “[c]reating a very
significant head injury.” Hyde testified that his theory of what had occurred was an
“assumption” based on his experience and training, what he had been told by
bystanders and what he had personally observed regarding Lee’s injuries, including
the fresh abrasion on his face and Lee’s condition at the scene,
Dr. Laura Brown, a trauma surgeon at MetroHealth Medical Center,
treated Lee following the incident. She testified that Lee had sustained a “rare”
“brain bleed,” i.e., a subdural hematoma to the right side of his brain caused by
tearing of veins leading from the brain to the dura, and was admitted to the trauma
intensive care unit in critical condition after having a hemicraniectomy, a procedure
involving the removal of a piece of a patient’s skull to relieve pressure caused by
swelling of the brain. Dr. Brown testified that she did not have “a complete
mechanism” as to how the tear developed in Lee’s case. However, she noted that the
hospital staff had been told that he had been hit or punched and that a CT scan
revealed bruising on the outside of the skull and a “significant amount” of “acute”
swelling and bruising on the left side of the jaw, “meaning it happened as a result of
some injury just prior.” Dr. Brown testified that a “pretty significant amount of
force” would have been necessary “to cause that amount of bruising.” She testified
that she did not observe any facial bruising on Lee but explained that bruising is
caused by broken blood vessels underneath the tissue, so if the broken blood vessels
are under the surface, “you may not see it right away”; “you will see it over time.”
She also noted that the mandible is one of the strongest bones in the body and that
there is a lot of soft tissue around it so “it can hide it very easily.”
Dr. Brown testified that she could not say “medically” that “a single
punch” caused Lee’s brain injury because she did not know “if the mechanism of his
injury was the punch and then a fall” but that she also could not say that “it didn’t
have anything to do with it.” She stated that “it’s very rare for a person of [Lee’s] age
to sustain a subdural from a fall” and that, in her view, the cause of Lee’s injury was
“both the punch and the fall * * * he didn’t have a subdural before that happened.”
She explained:
[A]ny injury, significant injury that shakes the brain can cause tearing
of those veins. So if there was enough force from an impact to the left
jaw, it could shake the brain inside the dura causing tearing of the vein.
It can also happen from when the head hit the concrete. We wouldn’t
be able to differentiate between those two. I can’t tell you for sure.
Q. You are unable to say whether the tearing came from a punch or
a fall?
A. Correct.
Lee was hospitalized for 59 days in Cleveland before being medflighted back to Wisconsin, where he continued receiving treatment at a brain injury
rehabilitation facility. Lee has significant memory issues, cannot walk, cannot talk
above a whisper, has never been able to return to his home and has been declared
incompetent.
Cleveland Police Detective Aaron Reese was one of the detectives who
investigated the case. He conducted three interviews of Jacinto — two over the
telephone (recorded on his body camera) and one in-person interview (also
recorded). Portions of all three interviews were played for the jury. In the first
telephone interview, conducted on September 17, 2018 at approximately 4:30 p.m.,
Jacinto told Detective Reese that he had no recollection of getting into an altercation
or fight with anyone that evening and that he only recalled going out, waking up in
the hotel with his father the next morning and then going to the ACN conference.
Jacinto denied telling anyone that he was an MMA fighter. He said that he had never
been an MMA fighter and that he did not “even know how to fight.”
In a second telephone interview later that night, Jacinto told
Detective Reese that he had been thinking about the incident “nonstop” and that his
memory was “coming back.” Jacinto told Detective Reese that he could not recall
specifically what he and Lee were arguing about but that he was “in a situation where
a few people were trying to tell me that I’m doing something bad and * * * I didn’t
understand it.” Jacinto told Detective Reese that “[a]ll of us were being drunk idiots”
and that Lee had been “getting in [his] face” and kept “tapping [Jacinto’s] chest”
“over and over.” Jacinto stated that he felt like he had been “egged on” and was “in
[his] own corner.” He told the detective that he hit Lee “in the head or in the jaw”
once and “that’s it,” that Lee did not hit his head on anything “on the way down” and
that Lee “went to sleep” after he hit him and was “unconscious and snoring when he
hit the ground.” When Detective Reese asked Jacinto whether Lee had punched or
pushed him, Jacinto responded, “The only thing that happened was just me hurting
[Lee] at the end with that one punch.” When Detective Reese asked Jacinto whether
it had “crossed [his] mind” to get help for Lee, Jacinto replied, “yes,” but stated that
he had been drinking and “tried to make like nothing had happened” because he
“didn’t want anything to do with it.”
In the third interview, an in-person interview at the Third District
Detective Bureau conducted on September 30, 2018, Jacinto told Detective Reese
that when they got back to the hotel, after everyone had been having a good time
and drinking that evening, “things started going sideways.” He stated that Contreras
and Lee “started an argument” with him regarding a comment he had made about
Contreras’ dancing. Jacinto stated that Lee began “tapping” on his chest, telling
Jacinto what he had “done wrong.” Jacinto said that he did not know what he had
done wrong and tried to apologize, but that “it didn’t work out.” Jacinto stated that
he told Lee to stop touching him and tried to “swat” his hand away but that Lee kept
“tapping” and “poking” his chest and getting “in [his] face.” Jacinto indicated that
eventually he had had enough. Jacinto stated that Contreras tried to stop him and
told him that “it wasn’t worth it,” but that he put his vape down, took off his shirt
and gave Lee a “quick right jab” to the jaw. Jacinto told Detective Reese that after
he hit Lee, Lee “let out a loud snore,” fell backwards and “collapsed” on the ground
“snoring.” Jacinto said that he “didn’t even really connect very hard” and that he
did not realize he could cause “that kind of damage” and felt “horrible about it.”
Jacinto said that he had told people he was an MMA fighter — even though he was
not — because he was “cocky” and “trying to be cool” and wanted people to like him.
Jacinto acknowledged that he could have walked away from the situation, but that
he chose not to.
At the close of the state’s case, Jacinto moved for acquittal pursuant
to Crim.R. 29(A), arguing that there was insufficient evidence that Jacinto, by
throwing a single punch, had knowingly caused Lee serious physical harm. The trial
court denied the motion. Jacinto rested without presenting any witness testimony.
He renewed his Crim.R. 29 motion and the trial court, once again, denied it.
The trial court instructed the jury on felonious assault and the lesserincluded offense of assault in violation of R.C. 2903.13(B). Jacinto also requested a
jury instruction on self-defense. The trial court denied the request, concluding,
based on the evidence presented, that no reasonable jury could find that Jacinto had
acted in self-defense when he struck Lee.
On July 31, 2019, the jury found Jacinto guilty of felonious assault.
Jacinto was referred to the Cuyahoga County Probation Department for a
presentence investigation report (“PSI”). After reviewing the PSI and sentencing
memorandum, hearing from Lee’s family, the state, Jacinto’s family, Jacinto and
defense counsel and considering the purposes and principles of sentencing, the
relevant sentencing factors and “other cases,” the trial court sentenced Jacinto to
four years in prison with three years of mandatory postrelease control.
Jacinto appealed, raising the following six assignments of error for
review:
ASSIGNMENT OF ERROR 1: The trial court erred in failing to instruct
the jury that the state of Ohio was required to prove, beyond a
reasonable doubt, that appellant did not act in self-defense.
ASSIGNMENT OF ERROR 2: The trial court abused its discretion in
admitting a 911 call from an unidentified individual who was not
subjected to cross-examination in violation of appellant’s rights
protected under the United States and Ohio Constitutions.
ASSIGNMENT OF ERROR 3: The trial court erred in permitting EMT
Hyde to provide expert testimony in violation of the Ohio Rules of
Evidence, the Ohio Rules of Criminal Procedure, and appellant’s
constitutionally protected rights under the United States and Ohio
Constitutions.
ASSIGNMENT OF ERROR 4: Appellant’s conviction was against the
manifest weight of the evidence.
ASSIGNMENT OF ERROR 5: The state failed to present sufficient
evidence to prove each and every element of the offense beyond a
reasonable doubt.
ASSIGNMENT OF ERROR 6: The trial court erred in sentencing
appellant to a four-year term of incarceration.
For ease of discussion, we address Jacinto’s assignments of error out
of order where appropriate.
Law and Analysis
Self-Defense Jury Instruction
In his first assignment of error, Jacinto argues that the trial court
erred in denying his request for a self-defense jury instruction. He contends that
sufficient evidence was presented at trial to submit the issue of whether he acted in
self-defense to the jury.
As a general matter, the trial court must “‘fully and completely give all
jury instructions which are relevant and necessary for the jury to weigh the evidence
and discharge its duty as the fact finder.’” State v. White, 142 Ohio St.3d 277, 2015-
Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553
N.E.2d 640 (1990), paragraph two of the syllabus; State v. Joy, 74 Ohio St.3d 178,
181, 657 N.E.2d 503 (1995). Requested jury instructions should ordinarily be given
if they are correct statements of law, if they are applicable to the facts in the case and
if reasonable minds might reach the conclusion sought by the requested instruction.
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240; State v.
Crawford, 2016-Ohio-7779, 73 N.E.3d 1110, ¶ 14 (8th Dist.). In determining
whether a jury instruction on an affirmative defense should be given, “‘the court
must view the evidence in a light most favorable to the defendant. The question of
credibility is not to be considered.’” State v. Sullivan, 11th Dist. Lake Nos. 2019-L143 and 2019-L-144, 2020-Ohio-1439, ¶ 45, quoting State v. Belanger, 190 Ohio
App.3d 377, 2010-Ohio-5407, 941 N.E.2d 1265, ¶ 6 (3d Dist.). Appellate courts
review a trial court’s refusal to give a requested jury instruction for abuse of
discretion. Adams at ¶ 240.
Under Ohio law, a person is permitted to act in self-defense. R.C.
2901.05(B)(1). Self-defense is an affirmative defense. In cases involving the use of
nondeadly force2 it applies where: (1) the defendant was not at fault in creating the
situation giving rise to the affray in which the use of force occurred, (2) the
defendant had reasonable grounds to believe and an honest belief, even if mistaken,
that he or she was in imminent danger of bodily harm and (3) the only means to
protect himself or herself from such danger was the use of force not likely to cause
death or great bodily harm, i.e., the defendant did not use more force than was
reasonably necessary to defend against the imminent danger of bodily harm. See,
e.g., Ohio Jury Instructions CR Section 421.19 (Rev. April 13, 2019); State v.
Kilbane, 8th Dist. Cuyahoga No. 106753, 2019-Ohio-863, ¶ 13; State v. Hunt, 8th
Dist. Cuyahoga No. 94534, 2011-Ohio-92, ¶ 20; Cleveland v. Welms, 169 Ohio
App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 19 (8th Dist.); State v. Chavez, 3d
Dist. Seneca Case Nos. 13-19-05, 13-19-06 and 13-19-07, 2020-Ohio-426, ¶ 40; see
also State v. Palmer, 10th Dist. Franklin No. 2013-Ohio-5970, ¶ 13 (“A defendant
* * * cannot establish self-defense using non-deadly force if he or she uses force
2 There is no dispute in this case that the force used by Jacinto was nondeadly force.
See, e.g., State v. Triplett, 192 Ohio App.3d 600, 2011-Ohio-816, 949 N.E.2d 1058, ¶ 14
(8th Dist.) (one punch is not “comparable to deadly force”); State v. Redding, 3d Dist
Union No. 14-19-01, 2019-Ohio-5302, ¶ 19 (“‘A single punch, standing alone, may not
constitute deadly force.’”), quoting State v. Jeffers, 11th Dist. Lake No. 2007-L-011, 2008-
Ohio-1894, ¶ 81; State v. Davis, 10th Dist. Franklin No. 17AP-438, 2018-Ohio-58, ¶ 25
(“A single punch with a fist is ordinarily considered use of non-deadly force.”).
greater than that reasonably necessary to defend against the imminent use of
unlawful force.”). There is no duty to retreat to avoid the danger in cases involving
the use of nondeadly force, even if retreat is possible. Welms at ¶ 19; Chavez at ¶ 40.
Under former R.C. 2901.05(A), the defendant had the burden of
proving self-defense by a preponderance of the evidence. Former R.C. 2901.05(A)
stated:
Every person accused of an offense is presumed innocent until proven
guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of
proof, by a preponderance of the evidence, for an affirmative defense,
is upon the accused.
Effective March 28, 2019, Ohio’s self-defense law was changed to
require the state to prove that a defendant did not act in self-defense where the
defense could reasonably be found apply. 3 R.C. 2901.05(A), as amended, states, in
relevant part:
Every person accused of an offense is presumed innocent until proven
guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of
proof, by a preponderance of the evidence, for an affirmative defense
other than self-defense * * * as described in division (B)(1) of this
section, is upon the accused.)
(Emphasis added.) R.C. 2901.05(B)(1) further states:
A person is allowed to act in self-defense, defense of another, or defense
of that person’s residence. If, at the trial of a person who is accused of
3 In this case, although the incident occurred prior to the effective date of the
amended statute, the trial occurred after the effective date. The parties agree that the
amended version of the statute applies.
an offense that involved the person’s use of force against another, there
is evidence presented that tends to support that the accused person
used the force in self-defense, defense of another, or defense of that
person’s residence, the prosecution must prove beyond a reasonable
doubt that the accused person did not use the force in self-defense,
defense of another, or defense of that person’s residence, as the case
may be.
Thus, if evidence is presented at trial that tends to support that a
defendant used nondeadly force in self-defense, the state must now prove beyond a
reasonable doubt that the defendant did not use that force in self-defense. In other
words, the state must disprove at least one of the elements of the use of nondeadly
force in self-defense beyond a reasonable doubt, i.e., the state must prove that (1)
the defendant was at fault in creating the situation giving rise to the affray in which
the force was used or (2) the defendant did not have reasonable grounds to believe
or an honest belief that he or she was in imminent danger of bodily harm or (3) the
defendant used more force than was reasonably necessary to defend against the
imminent danger of bodily harm. See, e.g., State v. Carney, 10th Dist. Franklin No.
19AP-402, 2020-Ohio-2691, ¶ 31; State v. Nestingen, 5th Dist. Richland No. 2019
CA 110, 2020-Ohio-2965, ¶ 17.
The state has no obligation to disprove all possible affirmative
defenses a defendant may claim applies. The state need not disprove an affirmative
defense unless evidence is presented that is sufficient to raise that defense. “A bare
assertion by the defendant that he acted in self-defense will not bring the affirmative
defense of self-defense into issue in the trial.” State v. Gideons, 52 Ohio App.2d 70,
73, 368 N.E.2d 67 (8th Dist.1977). “Coupled with such an assertion must be
supporting evidence from whatever source introduced of a nature and quality
sufficient to raise the defense and which ‘* * * if believed, would under the legal tests
applied to a claim of self-defense permit a reasonable doubt as to guilt * * *.’”
Gideons at 73, quoting State v. Robinson, 47 Ohio St.2d 103, 113, 351 N.E.2d 88
(1976).
Black’s Law Dictionary defines “tend” as “[t]o be disposed toward
(something),” “[t]o serve, contribute, or conduce in some degree or way; to have a
more or less direct bearing or effect” and “[t]o be directed or have a tendency to (an
end, object, or purpose).” Black’s Law Dictionary 1696 (10th Ed.2014).
Thus, evidence “tends to support” that a defendant used force in selfdefense, and a defendant is entitled to a jury instruction on the defense of selfdefense under R.C. 2901.05, as amended, where the evidence in the record is
sufficient to raise a question of reasonable doubt of guilt, based on a claim of selfdefense, in the mind of a reasonable juror. See, e.g., State v. Tolle, 4th Dist. Adams
No. 19CA1095, 2020-Ohio-935, ¶ 23-24 (Evidence is sufficient to support a selfdefense jury instruction under R.C. 2901.05, as amended, “‘where a reasonable
doubt of guilt has arisen based upon [the affirmative defense].’ * * * In order for
evidence [to] ‘tend[]’ to support an affirmative defense, it must be sufficient to raise
a question in the mind of a reasonable juror.”), quoting State v. Melchior, 56 Ohio
St.2d 15, 20, 381 N.E.2d 195 (1978); see also State v. Sullivan, 11th Dist. Lake Nos.
2019-L-143 and 2019-L-144, 2020-Ohio-1439, ¶ 33-34, 45 (“When a defendant’s
testimony, if believed, would have raised the question of self-defense in the mind of
a reasonable juror, the defendant’s burden of production has been met.”). If the
evidence presented “‘generates only a mere speculation or possible doubt, such
evidence is insufficient to raise the affirmative defense, and submission of the issue
to the jury will be unwarranted.’” Tolle at ¶ 23, quoting Melchior at 20.
The record reflects that, prior to denying Jacinto’s request for a jury
instruction on self-defense, the trial court carefully considered whether a selfdefense jury instruction was appropriate, including eliciting and considering the
arguments of counsel, analyzing applicable legal authority and re-reviewing the
relevant testimony, the surveillance video footage and the recordings of Jacinto’s
statements to police. The trial court ultimately denied Jacinto’s request for a jury
instruction on self-defense because it found that no evidence had been presented
that Jacinto felt that “his physical wellbeing was in any way, shape or form in
danger” when he struck Lee.
Based on the record before us, we cannot say that the trial court
abused its discretion or otherwise erred in denying Jacinto’s request for a selfdefense jury instruction. Tolle at ¶ 26-32 (where the evidence presented was
insufficient to create a question in the minds of reasonable jurors regarding whether
defendant was “not at fault in creating the situation giving rise to the affray,” trial
court did not abuse its discretion in denying defendant’s request for a self-defense
instruction under R.C. 2901.05(B)(1), as amended). Even assuming a reasonable
juror could find that Jacinto was not at fault in creating the situation that gave rise
to the altercation, no evidence was presented that “tended to support” that Jacinto
believed he was in imminent danger of bodily harm prior to striking Lee or from
which a rational juror could reasonably infer that Jacinto believed he was in
imminent danger of bodily harm prior striking Lee.
No evidence was presented that Lee struck, pushed or physically
threatened Jacinto in any way or used any physically threatening, “fighting” words
prior to Jacinto punching Lee. Although Contreras testified that Lee “poked”
Jacinto in the chest, he indicated that the “poking” occurred approximately ten
minutes before Jacinto punched Lee. Contreras testified that after the poking, the
situation deescalated. The surveillance video confirms this.
Jacinto did not testify at trial. In his police interviews, Jacinto told
police that Lee “tapped” or “poked” him in the chest repeatedly, but indicated that
he at no point he felt threatened by, or feared he might be physically harmed in any
way by, Lee. According to his statements to police, Jacinto punched Lee because
they were both “drunken idiots” and Jacinto was aggravated, annoyed or frustrated
by his conversation with Lee and the fact Lee was “getting in [his] face” about it.
After carefully reviewing the record in this case, we find that there was
insufficient evidence to warrant a jury instruction on self-defense. There is no
evidence from which a jury might reasonably conclude that Jacinto had a bona fide
belief that he was in imminent danger of bodily harm. Cf. State v. Arnett, 11th Dist.
Ashtabula No. 95-A-0005, 1995 Ohio App. LEXIS 3294, 3-4 (August 11, 1995)
(insufficient evidence to warrant a jury instruction on self-defense where victim did
not strike, push or threaten defendant and defendant testified that he struck victim
because victim accused him of something he did not do and poked his finger in
defendant’s face). Accordingly, the trial court did not abuse its discretion or
otherwise err in failing to give a self-defense jury instruction.
Although not identified as a separate assignment of error, Jacinto also
contends that the trial court erred in excluding “extensive evidence of Mr. Lee’s prior
violent conduct, including that against court staff and that which had occurred at
prior work functions” based on his claim of self-defense. “A trial court has broad
discretion in admitting or excluding evidence, and a trial court’s ruling on the
admissibility of evidence will be upheld absent an abuse of that discretion and a
showing of material prejudice.” See, e.g., State v. Ortiz-Vega, 8th Dist. Cuyahoga
No. 107694, 2019-Ohio-2918, ¶ 52. Jacinto acknowledges that a defendant asserting
self-defense cannot introduce evidence of specific instances of a victim’s conduct to
prove that the victim was the initial aggressor. See, e.g., State v. Barnes, 94 Ohio
St.3d 21, 759 N.E.2d 1240 (2002), syllabus. However, he contends that, because he
was denied a self-defense instruction, this rule does not apply and he should have
been permitted to introduce evidence of prior instances of “violent conduct” by Lee.
There was no evidence Jacinto was aware of Lee’s background at the
time of the altercation. As such, it could not have had any bearing on Jacinto’s state
of mind. Jacinto has not shown that such evidence was admissible regardless of
whether a self-defense instruction was provided or that he was materially prejudiced
by the exclusion of this evidence. Jacinto’s conclusory assertion in his brief that such
evidence was “relevant, material, and otherwise admissible,” without any
explanation or citation to legal authority supporting his assertion, does not satisfy
his obligation under App.R. 16(A)(7). An appellate court is not obliged to construct
or develop arguments to support a defendant’s assignment of error and “will not
‘guess at undeveloped claims on appeal.’” See, e.g., State v. Piatt, 9th Dist. Wayne
No. 19AP0023, 2020-Ohio-1177, ¶ 39, quoting McPherson v. Goodyear Tire &
Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio-7190, ¶ 31; see also State v.
Collins, 8th Dist. Cuyahoga No. 89668, 2008-Ohio-2363, ¶ 91 (“‘[I]t is not the duty
of this Court to develop an argument in support of an assignment of error if one
exists.’”), quoting State v. Franklin, 9th Dist. Summit No. 22771, 2006-Ohio-4569,
¶ 19; App.R. 12(A)(2).
We overrule Jacinto’s first assignment of error.
Admission of 911 Call
In his second assignment of error, Jacinto contends that the trial
court abused its discretion in allowing the state to admit the recording of the 911 call
without having the 911 caller testify and be subject to cross-examination. Jacinto
contends that call contained hearsay that “did not fit an exception” and that by
allowing the state to play the 911 call for the jury, the trial court violated his
constitutional right to confront the witnesses against him.
Confrontation Clause
The Sixth Amendment’s Confrontation Clause provides: “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him.” Only testimonial hearsay implicates the Confrontation
Clause. A statement is “testimonial” if it is made for “‘a primary purpose of creating
an out-of-court substitute for trial testimony.’” State v. Montgomery, 148 Ohio
St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 87, quoting Michigan v. Bryant, 562
U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); see also State v. Knox, 8th Dist.
Cuyahoga No. 107414, 2019-Ohio-1246, ¶ 67 (“[T]he core class of statements
implicated by the Confrontation Clause” includes those “‘made under circumstances
which would lead an objective witness to reasonably believe that the statement
would be available for use at a later trial.’”), quoting Crawford v. Washington, 541
U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The admission of a testimonial, out-of-court statement by a declarant
who does not testify at trial violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine the
declarant. Crawford at 53-54, 68. We review evidentiary rulings that implicate the
Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 97.
911 calls are generally nontestimonial and are admissible if the
statements contained therein satisfy a hearsay exception. As the United States
Supreme Court explained in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006), in determining that a victim’s statements to a 911 operator
during and shortly after a violent attack by her boyfriend were nontestimonial:
Without attempting to produce an exhaustive classification of all
conceivable statements — or even all conceivable statements in
response to police interrogation — as either testimonial or
nontestimonial * * * [s]tatements are nontestimonial when made in the
course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal
prosecution.
* * *
A 911 call * * * and at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily to
“establis[h] or prov[e]” some past fact, but to describe current
circumstances requiring police assistance.
Id. at 822, 827, quoting Crawford at 51. The court observed that, in the case of 911
calls, the declarants are generally “speaking about events as they [are] actually
happening” and that “[a]lthough one might call 911 to provide a narrative report of
a crime absent any imminent danger,” 911 callers are typically facing ongoing
emergencies. (Emphasis deleted.) Davis at 827. Under such circumstances, the 911
caller is not testifying; the 911 caller is not acting as a witness and the statements of
a 911 caller are not testimonial in nature. Id. at 827-828.
In Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93
(2011), the court clarified “what Davis meant” by “‘an ongoing emergency’” and its
role in determining whether a declarant’s statements are testimonial for purposes of
the Confrontation Clause. Id. at 359, quoting Davis at 822. The court rejected the
Michigan Supreme Court’s reading of Davis “as deciding that ‘the statements made
after the defendant stopped assaulting the victim and left the premises did not occur
during an “ongoing emergency’”” and stated that “whether an emergency exists and
is ongoing is a highly context-dependent inquiry.” (Emphasis deleted.) The court
explained:
An objective analysis of the circumstances of an encounter and
the statements and actions of the parties to it provides the most
accurate assessment of the “primary purpose of the interrogation.” The
circumstances in which an encounter occurs — e.g., at or near the scene
of the crime versus at a police station, during an ongoing emergency or
afterwards — are clearly matters of objective fact. The statements and
actions of the parties must also be objectively evaluated. That is, the
relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the purpose
that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the
encounter occurred. * * *
[T]he existence of an “ongoing emergency” at the time of an
encounter between an individual and the police is among the most
important circumstances informing the “primary purpose” of an
interrogation. * * * The existence of an ongoing emergency is relevant
to determining the primary purpose of the interrogation because an
emergency focuses the participants on something other than “prov[ing]
past events potentially relevant to later criminal prosecution.” Davis,
547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. Rather, it focuses
them on “end[ing] a threatening situation.” Id. at 832.
* * *
[T]he existence and duration of an emergency depend on the
type and scope of danger posed to the victim, the police, and the public.
Id. at 360-361, 370-371.
Statements made by a 911 caller in response to questioning by a 911
operator are likewise nontestimonial where the “primary purpose” of the exchange
is to obtain assistance in an emergency. See, e.g., Davis at 822, 827-828; State v.
McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 16, citing State v. Siler,
116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 24-25.
Jacinto argues that the 911 call was testimonial in nature, at least in
part, because the caller was not “attempting to provide police assistance to an
ongoing criminal act,” but rather, was “simply seeking to notify emergency services
so that an ambulance could be sent.” He also contends that the 911 call was
testimonial because the caller, “[w]hile seeking medical assistance,” “delved deeply
into multiple, sometimes inconsistent, past events that would certainly be relevant
in later criminal proceedings.” We disagree.
As explained above, when determining whether a 911 caller’s
statements are testimonial or nontestimonial, the issue is not whether the
statements would “be relevant” in later criminal proceedings. The issue is the
“primary purpose” for which the statements are made. Further, an “ongoing
emergency” is not limited to circumstances imposing an ongoing, immediate threat
of physical harm to a victim. “An ongoing emergency can exist after the original
threat to the victim has ceased to exist if there is a potential threat to police or the
public or the victim is in need of emergency medical services.” Cleveland v. Merritt,
2016-Ohio-4693, 69 N.E.3d 102, ¶ 10 (8th Dist.), citing Bryant, 562 U.S. at 376, 131
S.Ct. 1143, 179 L.Ed.2d 93; see also State v. Wade, 11th Dist. Lake No. 2019-L-065,
2020-Ohio-2894, ¶ 35-37 (911 calls made immediately after a shooting to report the
shooting and to obtain medical assistance for a victim who had been shot were
nontestimonial).
Based on Davis, this court has identified “four characteristics of a
statement that meets the emergency exception”: (1) the declarant describes
contemporaneous events rather than events that occurred hours earlier, (2) an
objective emergency exists, (3) the questions asked of the declarant are necessary to
resolve the emergency and (4) the interview is of an informal nature. Cleveland v.
Johnson, 8th Dist. Cuyahoga No. 107930, 2019-Ohio-3286, ¶ 18, citing State v.
Clark, 2016-Ohio-4561, 67 N.E.3d 182, ¶ 38 (8th Dist.), citing Davis, 547 U.S. at
826-830, 126 S.Ct. 2266, 165 L.Ed.2d 224. All four characteristics are present here.
In this case, the 911 call was made by someone at the scene just after
the incident occurred for the purpose of obtaining emergency medical services for
Lee. The 911 caller describes the victim’s current condition, informing the 911
operator that the victim was “knocked out,” “barely breathing” and “gasping for air.”
Although the caller describes the immediately preceding events that gave rise to the
need for emergency services, i.e., that the victim had been punched and knocked out
and his head had hit the concrete, it is clear that the primary purpose of the caller’s
statements was not to establish or prove past events potentially relevant to later
criminal prosecution, but rather, to obtain immediate emergency medical assistance
for the victim. Simply because the 911 caller used the past tense and described
certain events that had just occurred, rather than as they were occurring, does not
mean that there was not an ongoing emergency that rendered his statements
nontestimonial. See, e.g., State v. Conyer, 7th Dist. Mahoning No. 16 MA 0021,
2017-Ohio-7506, ¶ 11-20. There is nothing to suggest that caller was “giving
testimony” or “speaking with the intention of providing testimony at a later time.”
State v. Naugler, 12th Dist. Madison No. CA2004-09-033, 2005-Ohio-6274, ¶ 22.
The caller was seeking immediate assistance and was providing information for that
purpose.
Although “a conversation which begins as an interrogation to
determine the need for emergency assistance” can “‘evolve into testimonial
statements’ * * * once that purpose has been achieved,’” this is not that case. Davis
at 828, quoting Hammon v. State, 829 N.E.2d 444 (Ind.2005).
The questions the 911 operator asked the caller, e.g., questions
relating to the location of the perpetrator and the location and condition of the
victim, clearly related to the ongoing emergency and were directed to determining
the nature and scope of the emergency to which law enforcement or other
responders would need to respond. See, e.g., State v. Douglas, 3d Dist. Marion Nos.
9-18-19 and 9-18-20, 2019-Ohio-2067, ¶ 29-30 (statements during 911 call were not
testimonial where “dispatcher was determining the emergency to which law
enforcement needed to respond; whether the victim needed medical attention; and
whether law enforcement should be aware if the assailant was present”).
Although the 911 caller provided some limited information regarding
the perpetrator, i.e., that he was a male and went into the hotel with another male
after punching the victim, the focus of the call was not on the perpetrator or the “past
events.” The caller did not identify the perpetrator or even describe the perpetrator
in any detail during the call; he simply indicated that the perpetrator had left the
scene and went into the hotel. The “nature of what was asked and answered,” viewed
objectively, “was such that the elicited statements were necessary to be able to
resolve the present emergency, rather than simply to learn * * * what had happened
in the past.” Davis, 547 U.S. at 827, 126 S.Ct. 2266, 165 L.Ed.2d 224.
Considering the totality of the circumstances, there is no indication in
the record that any reasonable person in the position of the 911 caller would have
intended to use the 911 call as a means of testifying regarding the events he was
witnessing. The out-of-court statements by the 911 caller concerned an ongoing
emergency and were not testimonial. Accordingly, no violation of the Confrontation
Clause occurred.
Having determined that the 911 emergency call was nontestimonial
and, therefore, not barred by the Confrontation Clause, we next consider whether
the call was admissible under an exception to the hearsay rules. See State v. Jones,
135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 165.
Applicable Hearsay Exceptions
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Hearsay is generally inadmissible unless it falls into one
of the applicable exceptions. Evid.R. 802.
Although Jacinto asserts that the 911 call “did not fit” any of the
hearsay exceptions, he does not explain why he contends none of the relevant
exceptions are applicable.
Typically, 911 calls are admissible as either excited utterances or
present sense impressions. See, e.g., State v. Rose, 8th Dist. Cuyahoga No. 89457,
2008-Ohio-1262, ¶ 42 (“Precedent overwhelmingly supports the conclusion that 911
calls are admissible either as excited utterances or present sense impressions.”); see
also Wade, 2020-Ohio-2894, at ¶ 28; State v. Urso, 195 Ohio App.3d 665, 2011-
Ohio-4702, 961 N.E.2d 689, ¶ 69 (11th Dist.); State v. Johnson, 10th Dist. Franklin
No. 08AP-652, 2009-Ohio-3383, ¶ 22.
An excited utterance is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition.” Evid.R. 803(2). The admission of a statement as an excited
utterance “is not precluded by questioning which: (1) is neither coercive nor leading,
(2) facilitates the declarant’s expression of what is already the natural focus of the
declarant’s thoughts, and (3) does not destroy the domination of the nervous
excitement over the declarant’s reflective faculties.” State v. Wallace, 37 Ohio St.3d
87, 524 N.E.2d 466 (1988), paragraph two of the syllabus. “There is no per se
amount of time after which a statement can no longer be considered to be an excited
utterance. The central requirements are that the statement must be made while the
declarant is still under the stress of the event and the statement may not be the result
of reflective thought.” (Emphasis deleted.) State v. Taylor, 66 Ohio St.3d 295, 303,
612 N.E.2d 316 (1993); see also Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984
N.E.2d 948, at ¶ 166.
A present sense impression is “[a] statement describing or explaining
an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” Evid.R. 803(1).
In this case, the statements by the 911 caller were admissible both as
excited utterances and present sense impressions. The 911 caller reported an
startling event he had personally observed just moments earlier, i.e., “[a] guy walked
up to him and hit him and knocked him out and his head hit the concrete,” and
provided a contemporaneous description of the victim’s condition as he was
perceiving it, i.e., that the victim was unconscious, “barely breathing” and “gasping
for air.” Although the perpetrator had left the scene when the caller spoke with the
911 operator, the crisis was ongoing because the victim was in need of immediate
medical attention. The tone of the caller’s voice reflects that he is still under the
stress of what he had just observed and what he was currently observing and there
is a sense of urgency related to the condition of the victim for whom he is seeking
emergency medical assistance. There is nothing to suggest that the caller’s
statements to the 911 operator were the result of reflective thought. The questions
from the 911 operator were not coercive or leading; they facilitated the caller’s
expression of the natural focus of his thoughts — what had happened to the victim
and the victim’s present condition.
Accordingly, the trial court did not violate the Confrontation Clause
when it admitted the 911 call into evidence. The caller’s statements were
nontestimonial and were admissible under exceptions to the hearsay rule.
Jacinto’s second assignment of error is overruled.
“Expert” Opinion Testimony by EMT
In his third assignment of error, Jacinto contends that the trial court
erred in allowing Hyde, a paramedic who treated Lee, to offer expert opinion
testimony regarding the amount of force needed to cause Lee’s injuries, the direction
from which that force would come and whether Lee was knocked unconscious prior
to hitting the ground. Jacinto asserts that the trial court erred in admitting this
opinion testimony because (1) it did not meet the requirements for lay opinion
testimony under Evid.R. 701; (2) Hyde’s opinions were not disclosed in an expert
report as required under Crim.R. 16(K), (3) Hyde lacked the expertise necessary to
render the proffered “expert” opinions under Evid.R. 702 and (4) Hyde’s opinions
were based on “assumptions” and lacked an adequate factual foundation. Jacinto
argues that his conviction should be vacated and that he should be granted a new
trial based on the improper admission of this testimony.
Evid.R. 701 governs opinion testimony by lay witnesses. It provides:
If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.
Evid.R. 702 governs the admissibility of expert testimony. A witness
may testify as an expert if all of the following apply: (1) the witness’ testimony relates
to matters beyond the knowledge or experience possessed by lay persons or dispels
a misconception common among lay persons; (2) the witness is qualified as an
expert by specialized knowledge, skill, experience, training or education regarding
the subject matter of the testimony and (3) the witness’ testimony is based on
reliable scientific, technical or other specialized information. Evid.R. 702. In
addition, Crim.R. 16(K) requires that a party seeking to introduce expert testimony
provide a written expert report “summarizing the expert witness’[] testimony,
findings, analysis, conclusions, or opinion” and “qualifications.” See also State v.
Boaston, Slip Opinion No. 2020-Ohio-1061, ¶ 59 (trial court erred in admitting
expert opinion testimony on topics that were not set forth in a written report
prepared in compliance with Crim.R. 16(K)). The purpose of the rule “‘to avoid
unfair surprise by providing notice to the defense and allowing the defense an
opportunity to challenge the expert’s findings, analysis, or qualifications, possibly
with the support of an adverse expert who could discredit the opinion after carefully
reviewing the written report.’” Boaston at ¶ 48, quoting State v. Perry, 11th Dist.
Lake No. 2011-L-125, 2012-Ohio-4888, ¶ 55.
The state contends that Hyde’s testimony on direct examination that
(1) Lee’s injuries were consistent with someone being punched and immediately
knocked unconscious rather than someone being punched and losing consciousness
only after hitting the ground and (2) “it would take a significant amount of force to
knock someone into unconsciousness before even hitting the ground” was
admissible lay opinion testimony under Evid.R. 701, because it was rationally based
on his perception and was helpful to the jury because it helped the jury to
understand “not only [that] Lee suffered serious physical harm, but how he suffered
that harm.” (Emphasis deleted.) The state asserts that it was defense counsel who
“tried to elicit expert testimony from Hyde” by asking Hyde, on cross-examination,
“[i]n order to knock somebody out, how much force is required, specific PSI or
pounds” and “what happened here.”
“‘The line between expert testimony under Evid.R. 702 and lay
opinion testimony under Evid.R. 701 is not always easy to draw.’” State v. Mathis,
8th Dist. Cuyahoga No. 107365, 2019-Ohio-3654, ¶ 59, quoting Hetzer-Young v.
Elano Corp., 2016-Ohio-3356, 66 N.E.3d 234 (2d Dist.). As the Ohio Supreme Court
has stated:
[C]ourts have permitted lay witnesses to express their opinions in areas
in which it would ordinarily be expected that an expert must be
qualified under Evid.R. 702. * * * Although these cases are of a
technical nature in that they allow lay opinion testimony on a subject
outside the realm of common knowledge, they still fall within the ambit
of the rule’s requirement that a lay witness’s opinion be rationally based
on firsthand observations and helpful in determining a fact in issue.
These cases are not based on specialized knowledge within the scope of
Evid.R. 702, but rather are based upon a layperson’s personal
knowledge and experience.
State v. McKee, 91 Ohio St.3d 292, 296-297, 744 N.E.2d 737 (2001).
However, a distinction between lay opinion testimony and expert
opinion testimony remains. “[L]ay person opinion testimony ‘results from a process
of reasoning familiar in everyday life, while expert opinion testimony results from a
process of reasoning that only specialists in the field can master.’” State v. Russell,
12th Dist. Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 36, quoting State v. Lewis,
192 Ohio App.3d 153, 2011-Ohio-187, 948 N.E.2d 487, ¶ 23 (5th Dist.). We review a
trial court’s determination of the admissibility of lay witness opinion testimony for
abuse of discretion. Mathis, 2019-Ohio-3654, at ¶ 59, citing State v. Allen, 8th Dist.
Cuyahoga No. 92482, 2010-Ohio-9, ¶ 46.
Following a thorough review of the record, we agree that Hyde’s
testimony exceeded the scope of permissible lay opinion testimony under Evid.R.
701. What happened within Lee’s brain after Jacinto punched him, what happened
within Lee’s brain after he hit the ground and the amount and direction of the force
required to cause Lee’s brain injury were not matters “rationally based on [Hyde’s]
perception.” Evid.R. 701. We likewise agree that Hyde’s opinions regarding these
issues were not properly admitted under Crim.R. 16(K) and Evid.R. 702. No expert
report was provided to the defense — aside from the EMS report which did not
address these issues — and Hyde was not shown to have any expertise or specialized
training in traumatic brain injuries or the forces required to cause those injuries as
would be necessary to render expert opinions regarding these issues.
Nevertheless, we find that the trial court’s error in admitting this
testimony was harmless. Crim.R. 52(A) provides: “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” See also R.C.
2945.83(C) (“No motion for a new trial shall be granted or verdict set aside, nor shall
any judgment of conviction be reversed in any court because of * * * [t]he admission
or rejection of any evidence offered against or for the accused unless it affirmatively
appears on the record that the accused was or may have been prejudiced thereby.”);
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24 (“Not
every error requires that a conviction be vacated or a new trial granted.”). In order
to prejudice a defendant, i.e., to “affect” a defendant’s “substantial rights” under
Crim.R. 52(A), the error “‘must have affected the outcome of the [trial] court
proceedings.’” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222,
¶ 7, quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993).
The Ohio Supreme Court has articulated a “three-part analysis” to be
used in determining whether the erroneous admission of evidence “affected the
defendant’s substantial rights so as to require a new trial or whether the admission
of that evidence was harmless error under Crim.R. 52(A).” Boaston, Slip Opinion
No. 2020-Ohio-1061, at ¶ 63. As the court explained in Boaston:
“First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. [Morris,
141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 25, 27].
Second, it must be determined whether the error was not harmless
beyond a reasonable doubt. Id. at ¶ 28. Lastly, once the prejudicial
evidence is excised, the remaining evidence is weighed to determine
whether it establishes the defendant’s guilt beyond a reasonable doubt.
Id. at ¶ 29, 33.”
Boaston at ¶ 63-70 (improper admission of deputy coroner’s expert opinions beyond
the scope of her report did not affect the substantial rights of the defendant where
the remaining evidence adduced by the state established the defendant’s guilt
beyond any reasonable doubt), quoting State v. Harris, 142 Ohio St.3d 211, 2015-
Ohio-166, 28 N.E.3d 1256, ¶ 37.
Applying that analysis in this case, we find that Jacinto was not
prejudiced by the admission of Hyde’s testimony and that the trial court’s error in
admitting Hyde’s improper opinion testimony was harmless beyond a reasonable
doubt. As detailed above and further explained below, the state presented ample
evidence besides Hyde’s testimony establishing Jacinto’s guilt beyond any
reasonable doubt. Whether Jacinto lost consciousness immediately after he was
punched and before his head hit the ground or whether he lost consciousness only
after his head hit the ground “was not essential” to the state’s prosecution of the
felonious assault charge. Boaston at ¶ 64. Regardless of how or when Lee lost
consciousness, i.e., whether Lee was rendered unconscious by the punch itself or
became unconscious only after his head struck the ground, there was ample
evidence to support the jury’s finding, beyond a reasonable doubt, that Jacinto
knowingly caused serious physical harm to Lee by punching him.
Further, Hyde’s testimony that a significant amount of force was
necessary to cause Lee’s injuries and that Jacinto’s punch could have been the source
of that force was duplicative of testimony by Dr. Brown, who testified that Lee’s
brain injury came either from the punch or the fall that followed and that the punch
involved a “pretty significant amount of force” given the significant acute swelling
and bruising she observed on Lee’s jaw. No one disputes that her testimony was
properly admitted by the trial court. The fact that Jacinto punched Lee with
significant force was also clear from Jacinto’s statement to detectives that, after he
punched Lee once, Lee “let out a loud snore” and immediately fell to the ground.
Accordingly, we overrule Jacinto’s third assignment of error.
Sufficiency of the Evidence
In his fifth assignment of error, Jacinto contends that his conviction
should be overturned because there was insufficient evidence that Jacinto
“knowingly” caused serious physical harm to Lee.
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state met its burden of production at trial.
State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When
reviewing sufficiency of the evidence, an appellate court must determine “‘whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818
N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not
assess whether the evidence is to be believed but whether, if believed, the evidence
admitted at trial would support a conviction beyond a reasonable doubt. State v.
Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph
two of the syllabus.
Jacinto was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which provides, in relevant part: “No person shall knowingly * * *
[c]ause serious physical harm to another.” For purposes of his sufficiency argument,
Jacinto does not dispute that the state presented sufficient evidence that he caused
serious physical harm to Lee. Rather, Jacinto contends that the state lacked
sufficient evidence to prove beyond a reasonable doubt that he “knew” his punch
“could cause serious physical harm.”
Jacinto first argues that the state did not present “any legitimate
evidence” that Jacinto “knowingly” caused Lee serious physical harm and, instead,
“relied heavily on allegations that [Jacinto] was an MMA fighter” to support his
conviction. Jacinto contends that because it is a “universal truth” that “[d]runk
people tell tall tales,” his “drunken[ ] boasting about his skills” could not be
considered “evidence” that Jacinto knew his punch could cause serious physical
harm to Lee.
Simply because an individual made statements while intoxicated does
not mean those statements cannot be believed and used to support a conviction. Cf.
State v. Melton, 8th Dist. Cuyahoga No. 103341, 2016-Ohio-1227, ¶ 7 (intoxication
“bears upon” a witness’ credibility, but it does not render a witness’ testimony “per
se incredible”). Although Jacinto told police after the incident that he was simply
“boasting” when he told others he was an MMA fighter and that, in fact, he did not
“even know how to fight,” Contreras testified that he had an extended conversation
with Jacinto regarding their training histories and experience with fighting.
Accordingly, the jury could have reasonably determined that Jacinto had fighting
experience and knew what he was doing when he struck Lee in the jaw.
Even if, however, Jacinto had had no fighting experience, it would not
preclude a rational jury from finding, beyond a reasonable doubt, that Lee
knowingly caused Lee serious physical harm.
Although Jacinto may not have specifically intended to cause Lee any
serious physical harm — much less the catastrophic injuries Lee ultimately
sustained — and although Jacinto may not have known that his punch would cause
the particular injuries Lee sustained, “neither [Jacinto’s] purpose nor his lack of
knowledge that his act would cause the precise injury [Lee] suffered are the relevant
inquires when examining the evidence required to establish the knowingly element.”
State v. Murphy, 9th Dist. Summit No. 24753, 2010-Ohio-1038, ¶ 20.
To have acted “knowingly,” a person need not have specifically
intended to cause a particular result. “A person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will probably cause a
certain result or will probably be of a certain nature.” R.C. 2901.22(B). In other
words, a defendant acts knowingly when, although not necessarily intending a
particular result, he or she is aware that the result will probably occur.
If a result is a probable consequence of a voluntary act, the actor
“‘will be held to have acted knowingly to achieve it’” because a person “‘is charged
by the law with knowledge of the reasonable and probable consequences of his [or
her] own acts’.” State v. Dixon, 8th Dist. Cuyahoga No. 82951, 2004-Ohio-2406,
¶ 16, quoting State v. McDaniel, 2d Dist. Montgomery No. 16221, 1998 Ohio App.
LEXIS 2039, 16 (May 1, 1998); see also State v. McCurdy, 10th Dist. Franklin No.
13AP-321, 2013-Ohio-5710, ¶ 16 (“‘[F]elonious assault under R.C. 2903.11,
combined with the definition of “knowingly” found in R.C. 2901.22(B), does not
require that a defendant intended to cause “serious physical harm,” but rather, that
the defendant acted with an awareness that the conduct probably would cause such
harm.’”) (emphasis deleted), quoting State v. Smith, 10th Dist. Franklin No. 04Ap726, 2005-Ohio-1765, ¶ 28. “Stated another way, when a defendant voluntarily acts
in a manner that is likely to cause serious physical injury, the factfinder can infer
that the defendant was aware that his actions would cause whatever injury results
from his actions, or, in other words, that he acted knowingly.” State v. Reed, 8th
Dist. Cuyahoga No. 89137, 2008-Ohio-312, ¶ 10. “‘To be actionable it is only
necessary that the result is within the natural and logical scope of risk created by the
conduct.’” State v. Hampton, 8th Dist. Cuyahoga No. 103373, 2016-Ohio-5321, ¶ 13,
quoting State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-Ohio-1884, ¶ 29. The
defendant need not have known that his or her actions would cause the precise
injury sustained by the victim. See, e.g., State v. Perez, 8th Dist. Cuyahoga No.
91227, 2009-Ohio-959, ¶ 42, citing Dixon at ¶ 24; see also Hampton at ¶ 13 (“A
person need not foresee the precise consequences of criminal conduct.”).
Absent an admission, whether a defendant acted “knowingly” must
be determined “from all the surrounding facts and circumstances, including the
doing of the act itself.” Dixon at ¶ 16, quoting State v. Huff, 145 Ohio App.3d 555,
563, 763 N.E.2d 695 (1st Dist.2001).
Jacinto argues that there was insufficient evidence that he
knowingly caused Lee serious physical harm because it was “not reasonable to
believe,” under the circumstances, that a single punch would cause “serious physical
harm.” We disagree.
“Serious physical harm,” as defined in R.C. 2901.01(A)(5), is very
broad and includes any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged
or intractable pain.
Loss of consciousness, “‘irrespective of its duration,’” has been found to constitute
severe physical harm under R.C. 2901.01(A)(5)(c). Watson, 2018-Ohio-4964, ¶ 11,
quoting State v. Sales, 9th Dist. Summit No. 25036, 2011-Ohio-2505, ¶ 19.
In support of his argument that the evidence did not demonstrate
he knowingly caused serious physical harm to Lee, Jacinto cites State v. McCleod,
7th Dist. Jefferson No. 00 JE 8, 2001-Ohio-3480, and State v. McFadden, 10th Dist.
Franklin No. 95APA03-384, 1995 Ohio App. LEXIS 5144 (Nov. 21, 1995). In
McFadden, the defendant was convicted of felonious assault after throwing one
“blind-side punch” to the right side of the victim’s head. Id. at 4, 12. The defendant
and the victim were of “similar size and body weight” and the defendant lacked any
“boxing or fighting experience.” Id. at 11. The court indicated that, under the
circumstances of that case, while it was “reasonable to assume that a person would
expect one punch to cause physical harm to another person,” it could not be said
that “a reasonably prudent person would have been aware that the throwing of one
punch had the propensity to cause serious physical harm to another person.” Id. at
11-12. Accordingly, the court held that the evidence was insufficient to convict the
defendant of felonious assault. Id.
In McCleod, the Seventh District held that the trial court’s failure to
instruct the jury on assault warranted a reversal of the defendant’s conviction for
felonious assault. 2001-Ohio-3480 at ¶ 1, 57. In that case, the defendant had
“sucker-punched” and possibly kicked his victim. The court held that a reasonable
jury could have acquitted the defendant of felonious assault because it was “not
clear” that he was aware that one punch and possibly a kick “would certainly or likely
result in the type of serious injury which occurred.” Id. at ¶ 45. That is not the issue
in this case. In this case, the trial court instructed the jury both on felonious assault
and assault.
In numerous other cases, this court and others have held that a
single punch to the head or face can support a conviction for felonious assault even
in the absence of evidence that the defendant had fighting or boxing experience or
was “more physically imposing” than the victim. See, e.g., Watson, 2018-Ohio4964, at ¶ 16 (affirming felonious assault conviction where defendant struck the
victim “with a strong closed fist punch to the side of his head” with enough force
“that it knocked [the victim] to the ground, left him unconscious for an extended
period of time, and damaged his skull and brain”); State v. Eisenman, 10th Dist.
Franklin No. 17AP-475, 2018-Ohio-934, ¶ 11-12 (affirming felonious assault
conviction where defendant punched the victim once in the head with sufficient
force to “knock [the victim] out immediately”); Hampton, 2016-Ohio-5321, at ¶ 2,
14, 24, 27-28 (evidence of a single, forceful intentional punch to the head could
support the inference that defendant knowingly caused serious physical harm);
State v. Westfall, 9th Dist. Lorain No. 10CA009825, 2011-Ohio-5011, ¶ 2, 10 (single
punch to the victim’s face was sufficient to support felonious assault conviction);
State v. Shepherd, 11th Dist. Ashtabula No. 2003-A-0028, 2006-Ohio-4315, ¶ 28
(one punch to the face with sufficient force to crack two of the victim’s teeth was
sufficient to support a conviction for felonious assault); see also State v. Redman,
3d Dist. Allen No. 1-15-54, 2016-Ohio-860, ¶ 22 (“‘Punching someone in the face
satisfies the requisite culpable mental state for felonious assault.’”), quoting State v.
Beaver, 3d Dist. Union No. 14-13-15, 2014-Ohio-4995, ¶ 37; State v. Vanover, 4th
Dist. Lawrence No. 98CA38, 1999 Ohio App. LEXIS 2357, 14-15 (May 16, 1999)
(“[T]he mere act of punching someone in the head area carries with it the risk of
causing serious physical harm. * * * Serious physical harm is unquestionably a
natural and logical consequence of punching, without warning or provocation, an
intoxicated person whose faculties are likely impaired.”).
As explained above, the determination of whether a defendant acted
knowingly requires a review of all the relevant facts and circumstances. See, e.g.,
State v. Porter, 10th Dist. Franklin No. 19AP-29, 2019-Ohio-4868, ¶ 18 (“[I]n
analyzing an attack, inferences about mens rea depend on the nature and
circumstances of the event.”). In this case, the evidence shows that Lee weighed 180
pounds. After Jacinto punched Lee in the jaw, he immediately fell to the ground,
was unconscious and gasping for breath and sustained a severe brain injury. Dr.
Brown could not state whether Lee’s brain injury came from the punch or the fall
that followed, but testified that a “pretty significant amount of force” would have
been necessary to cause the significant acute swelling and bruising she observed on
Lee’s jaw. This was not a case of a light jab or minor clip. Jacinto’s punch was a
voluntary, significant, forceful blow to Lee’s face.
As the court explained in State v. Ayers, 3d Dist. Marion No. 9-81-
1, 1981 Ohio App. LEXIS 10550 (Aug. 18, 1981), in concluding that there was
sufficient evidence to support a felonious assault conviction where the defendant hit
the victim twice with his fist with sufficient force to break his cheekbone:
[T]he evidence clearly shows the blows were directed to the victim’s
face and head. This is the site of the sense of smell, of taste, of sight,
and of hearing. It is the situs of the brain. As such, any violent blow
can be expected to probably cause * * * some temporary substantial
incapacity and to cause acute pain of such duration as to result in
substantial suffering.
Id. at 4.
Although Jacinto may not have reasonably anticipated that Lee
would sustain a serious brain injury, considering all the circumstances, it could be
reasonably inferred that Jacinto knew that some form of serious physical harm to
Lee was a reasonable and probable consequence of his forceful punch to Lee’s jaw.
Furthermore, after punching Lee and seeing him fall to the ground, Jacinto simply
walked away. Jacinto’s response to the immediate impact of his punch could
reasonably support the inference that Jacinto was “unsurprised by its severity” and
that Jacinto was aware that his punch to Lee’s jaw would probably cause him serious
physical harm. See Watson, 2018-Ohio-4964, at ¶ 16.
Viewing the evidence in the light most favorable to the state and
considering the reasonable inferences to be drawn therefrom, we find that the
evidence presented was sufficient to support a finding, beyond a reasonable doubt,
that Jacinto knew that his conduct would probably cause serious physical harm to
Lee.
Accordingly, we overrule Jacinto’s fifth assignment of error.
Manifest Weight of the Evidence
In his fourth assignment of error, Jacinto contends that his felonious
assault conviction was against the manifest weight of the evidence.
In contrast to a challenge based on sufficiency of the evidence, a
manifest weight challenge attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Weight of the evidence “addresses the
evidence’s effect of inducing belief,” i.e., “whose evidence is more persuasive — the
state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,
865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678
N.E.2d 541 (1977). When considering an appellant’s claim that a conviction is
against the manifest weight of the evidence, the appellate court functions as a
“thirteenth juror” and may disagree “with the factfinder’s resolution of * * *
conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire
record, weighs the evidence and all reasonable inferences that may be drawn
therefrom, considers the witnesses’ credibility and determines whether, in resolving
conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the
“‘exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
Jacinto contends that jury lost its way and that his felonious assault
conviction was against the manifest weight of the evidence because Jacinto and Lee
were engaged in “mutual combat” and there was “no legitimate evidence”
establishing that Jacinto caused the injuries Lee suffered as a result of their “mutual
combat.”
Jacinto has cited no legal authority in support of his “mutual combat”
argument. Under such circumstances, an appellate court may properly disregard an
assignment of error. See App.R. 12(A)(2); App.R. 16(A)(7); State v. Lynch, 8th Dist.
Cuyahoga No. 95770, 2011-Ohio-3062, ¶ 18 (If an argument exists that can support
an inadequately argued assignment of error, it is not the duty of the appellate court
“‘to root it out.’”), quoting Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and
18673, 1998 Ohio App. LEXIS 2028, 22 (May 6, 1998); see also State v. Lynch, 8th
Dist. Cuyahoga No. 95770, 2011-Ohio-3062, ¶ 16-17 (observing that the “only place”
in which the court found “mention of the term mutual combat” was in connection
with jury instructions on voluntary manslaughter and in which “mutual combat”
was defined as “‘[a] consensual fight on equal terms — arising from a moment of
passion but not in self-defense — between two persons armed with deadly
weapons’”), quoting Black’s Law Dictionary 1045 (8th Ed.2004); State v. Shane, 63
Ohio St.3d 630, 635, 590 N.E.2d 272 (1992) (listing “mutual combat” as a “classic”
example of a “voluntary manslaughter situation”).
Indeed, courts have held that “where two persons agree to fight each
other in a non-competitive boxing situation, each may be held guilty of * * * felonious
assault * * * where the harm visited upon one of the fighters constitutes serious
physical harm.” McCurdy, 10th Dist. Franklin No. 13AP-321, 2013-Ohio-5710, ¶ 21;
State v. Dunham, 118 Ohio App.3d 724, 729-730, 693 N.E.2d 1175 (1st Dist.1997)
(“The fact that street fighters agree to engage in a public brawl to settle old or current
differences cannot and does not negate the penal consequences. * * * [W]here * * *
two persons agree to fight each other not in conformity with statutes authorizing
boxing matches, each may be held guilty of assault, and where * * * the harm visited
upon one of the fighters constitutes serious physical harm, the fact that the fight was
begun by mutual consent is not a defense, in law, to a charge brought pursuant to
R.C. 2903.11(A)(1).”); see also In re D.W., 8th Dist. Cuyahoga No. 79262, 2002-
Ohio-4173, ¶ 47-48.
Finally, even if some “mutual combat” defense applied to the charge
here, Jacinto has not shown that he and Lee were engaged in “mutual combat” at
the time Lee’s injuries occurred. The 911 caller stated that “[a] guy walked up to
[Lee] and hit him and knocked him out and his head hit the concrete.” Jacinto
admitted to Detective Reese that Lee did not punch, push or hit him and that “the
only thing that happened was me hurting him at the end.” He told the detective that
he hit Lee “in the head or in the jaw” once and “that’s it,” that Lee did not hit his
head on anything “on the way down” and that Lee “went to sleep” after he hit him
and was “unconscious and snoring when he hit the ground.”
After a careful review of the record in its entirety, weighing the
strength and credibility of the evidence presented and the inferences to be
reasonably drawn therefrom, we cannot say that this is one of those “exceptional
cases” in which the trial court clearly lost its way and created such a manifest
miscarriage of justice that Jacinto’s conviction for felonious assault was against the
manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
Jacinto’s fourth assignment of error is overruled.
Challenge to Sentence
In his sixth and final assignment of error, Jacinto argues that his
conviction should be overturned because the trial court failed to “properly consider”
the principles and purposes of sentencing under R.C. 2929.11 and the relevant
sentencing factors under R.C. 2929.12 when sentencing him to a four-year prison
term. Jacinto’s argument is meritless.
When sentencing a defendant for a felony offense, a trial court must
consider both the principles and purposes of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. State
v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 7. A sentence imposed
for a felony shall be “reasonably calculated” to achieve “three overriding purposes of
felony sentencing” (1) protect the public from future crime by the offender and
others, (2) punish the offender and (3) promote the effective rehabilitation of the
offender “using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local resources.” R.C.
2929.11(A), (B). In addition, the sentence imposed “shall be commensurate with
and not demeaning to the seriousness of the offender’s conduct and its impact upon
the victim” and “consistent with sentenced imposed for similar crimes committed
by similar offenders.” R.C. 2929.11(B).
A court imposing a felony sentence “has discretion to determine the
most effective way to comply” with these purposes and principles of sentencing.
R.C. 2929.12(A). R.C. 2929.12 sets forth a nonexhaustive list of factors related to
the seriousness of the offender’s conduct and the likelihood the offender will commit
future crimes that the trial court must consider when imposing a sentence.
Jacinto first argues that his sentence should be vacated because the
trial court improperly considered the seriousness of Lee’s injuries when imposing
his sentence. Jacinto asserts that because “[s]erious physical harm is an element of
felonious assault,” it “cannot be used to elevate the seriousness of [Jacinto’s]
conduct.” This court, however, previously rejected such an argument in State v.
Davis-Bey, 8th Dist. Cuyahoga No. 79524, 2002-Ohio-3437. As the court explained:
Although [the defendant] contends that the trial court erred in
considering the seriousness of the victim’s injury because serious injury
is one of the elements of the offense of felonious assault, this argument
ignores the fact that there are different degrees of serious harm. As the
court held in State v. Patterson, [10th Dist. Franklin No. 99AP-105,
1999 Ohio App. LEXIS 5975 (Dec. 14, 1999)]:
* * *
Defendant’s contentions * * * ignore the reality that serious physical
harm may be in different degrees. Something less than the severe
beating [the victim] endured may well constitute serious physical harm
for purposes of R.C. 2903.11(A)(1), but not be a worst form of the
offense for purposes of the sentencing statute.
Davis-Bey at ¶ 24-25; see also State v. Galindo-Barjas, 7th Dist. Mahoning No. 12
MA 37, 2013-Ohio-431, ¶ 1, 11-12 (“Even though ‘serious physical harm’ is an
element of aggravated vehicular assault, there is a range of harm possible within the
concept of what constitutes ‘serious physical harm’”; trial court was permitted to
consider the kind and extent of harm to the victim in imposing sentence even though
that harm “form[ed] an element of the crime.”).
Jacinto next argues that his sentence should be vacated because “the
evidence within the record does not comport with the sentence imposed” in light of
R.C. 2929.11 and 2929.12. Jacinto points out that he had no prior criminal history,
that both he and Lee were “highly intoxicated” at the time of the incident, that the
PSI indicated that Jacinto had a low risk of reoffending, that he “conveyed heartfelt
remorse for the events of that night” and that “extensive support letters” had been
submitted on his behalf at sentencing.
Although the trial court must consider the principles and purposes
of felony sentencing set forth in R.C. 2929.11 and the relevant sentencing factors
listed in R.C. 2929.12 when sentencing a defendant, R.C. 2929.11 and 2929.12 are
not “fact-finding statutes.” See, e.g., State v. Black, 8th Dist. Cuyahoga No. 108551,
2020-Ohio-3117, ¶ 13; State v. White, 8th Dist. Cuyahoga No. 106580, 2018-Ohio3414, ¶ 9; State v. Gaines, 8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11.
Thus, the trial court is not required to make findings or give specific reasons for
imposing more than the minimum sentence. Black at ¶ 13.
Where, as here, a sentence is imposed solely after consideration of
the factors in R.C. 2929.11 and 2929.12, “[a]n appellate court may vacate or modify
any sentence that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not support the
sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 23. “‘Clear and convincing evidence is that measure or degree of proof * * * which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-
Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. This is an “extremely deferential” standard of
review. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
As a general matter, a sentence is not contrary to law where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies
postrelease control and sentences a defendant within the permissible statutory
range. See, e.g., State v. Barnes, 8th Dist. Cuyahoga No. 108360, 2020-Ohio-665,
¶ 6; State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. A trial
court’s statement in its sentencing journal entry that it considered the required
principles, purposes and sentencing factors is sufficient to fulfill a trial court’s
obligations under R.C. 2929.11 and 2929.12. White, 2018-Ohio-3414, at ¶ 9.
In this case, the trial court expressly stated at the sentencing hearing
that it had “considered” both “the principles and purposes of sentencing” and the
relevant sentencing factors. It likewise stated in its sentencing journal entry that it
“considered all required factors of the law” and “finds that prison is consistent with
the purpose of R.C. 2929.11.” The trial court, therefore, fulfilled its obligations under
R.C. 2929.11 and 2929.12 when sentencing Jacinto.
Although it was not required to do so, at the sentencing hearing, the
trial court explained its evaluation of the relevant sentencing factors and its rationale
for imposing a four-year prison sentence as follows:
[T]he sentencing factors regarding the conduct is less serious,
that the victim induced or facilitated the offense, that the offender acted
under strong provocation, I don’t believe that those really apply here.
Mr. Contreras was very clear that he had to hold Mr. Jacinto back
for at least three minutes, and the video corroborated that.
* * *
Mr. Contreras was very clear that the victim was simply telling
the defendant that he needed to be more respectful, that he can’t use
the language that he was using that night, that he’ll get ahead in life if
he maybe changes the way that he talks to people or it was — he was
basically giving him a mentorship speech; and I think that the
defendant’s pride was injured.
And, obviously, yes, alcohol did have a lot to do with it, but I don’t
agree with some of the assertions made that it could have been the
other way, it could have happened the other way.
* * *
[P]articularly having sat through this trial, I was — I put a lot of
emphasis on the defendant’s conduct before and after this punch.
And like I stated, he had several opportunities to go inside. He
had several opportunities from Mr. Contreras to back down because
Mr. Contreras stated that he was ready to go. He was ready to fight.
That switch went off in his head.
And Mr. Contreras going up in the elevator with him was afraid
of the defendant. And the conduct after is what really, really struck me;
is that in the defendant’s statement to the detective, he knew that he —
when he threw that punch, that the defendant was knocked out and he
left him on the sidewalk in the city that was unknown to him alone and
left him while he was passed out at 3:00 something in the morning.
So I do consider the defendant’s conduct before and after, but I
also consider the fact that it was one punch; that although the jury
found that he knew or should have known to cause serious physical
harm — like I said, that degree of serious physical harm is what
separates each individual felonious assault.
You cannot treat all of them the same. I don’t think that he
intended to cause that degree of serious physical harm. But then again,
also I do need to consider that there was a high degree of serious
physical harm. Not all serious physical harms can be treated the same.
So I have considered the principles and purposes of sentencing.
I’ve carefully reviewed the record, the defendant’s history, the
presentence investigation, all of the letters, the reports, the recidivism
factors, which I believe are neutral because there is no history.
I understand that he’s low-to-moderate, but the anger and
alcohol issues we don’t know if they’re going to represent themselves in
the future.
I have considered the statements here today, the impact on the
victim, the impact on the defendant’s family.
I understand that any sentence the Court imposes must use the
minimum sanctions that the Court determines to accomplish these
purposes without imposing an unnecessary burden on the state or local
resources.
So after considering and having sat through this trial, having
considered the sentencing factors, I do believe that a prison sentence is
consistent with the principles and purposes of sentencing and the
defendant is not amenable to a community control sanction.
And, therefore, I’m imposing a period of incarceration of four
years.
The record reflects that the trial court thoroughly and thoughtfully
considered the principles and purposes of sentencing under R.C. 2929.11 and the
relevant sentencing factors under R.C. 2929.12 in imposing a four-year prison
sentence. A trial court’s sentencing decisions are entitled to deference; we are not
permitted to simply substitute our judgment for that of the trial court. See, e.g.,
State v. Shivers, 8th Dist. Cuyahoga No. 105621, 2018-Ohio-99, ¶ 9; Franklin, 2019-
Ohio-3760, ¶ 47. Following a careful review of the record in its entirety, we cannot
say that Jacinto’s sentence is clearly and convincingly unsupported by the record.
Jacinto’s sixth assignment of error is overruled.
Outcome: Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: